Texas Must Move 1,000 Inmates to Protect Them From Heat Stroke

HOUSTON (CN) — More than 1,000 Texas prisoners at risk of heat stroke will be put on buses bound for air-conditioned prisons starting Wednesday morning to comply with a federal judge’s order, state attorneys said Tuesday.

The Wallace Pack Unit is a minimum-security prison in Navasota, 70 miles northwest of Houston, where the heat index regularly exceeds 100 degrees Fahrenheit.

U.S. District Judge Keith Ellison found in July that those temperatures constitute cruel and unusual punishment for prisoners with health conditions that make them sensitive to heat.

State attorneys told Ellison at a Tuesday hearing that by Aug. 29 the Texas Department of Criminal Justice will transfer 1,037 inmates from the Pack Unit to air-conditioned beds in 10 other state prisons and a hospital in Galveston that treats prisoners.

The move is temporary. The prisoners will be shipped back to the Pack Unit once the weather cools. Inmates displaced by the incoming prisoners will be sent to units that aren’t air conditioned, Texas officials said.

Texas crafted the plan in accord with Ellison’s July 19 injunction in which he ordered Texas to keep the heat index at 88 degrees or lower inside the Pack Unit’s housing areas. The judge wrote: “Defendants may reconfigure areas that are currently air conditioned to accommodate the heat sensitive, or move them to other facilities in Texas.”

Seven Pack Unit inmates filed a class action in June 2014 against the Texas Department of Criminal Justice, its former executive director Brad Livingston and Pack Unit Warden Roberto Herrera.

Ellison certified a class of all current and future Pack Unit inmates in June 2016 and two subclasses for disabled and heat-sensitive prisoners.

Ellison opened the Tuesday hearing with compliments for Texas’ swift response to his order. “I think the government made a very good faith effort to respond to my plans,” he said.

“From a health and welfare standpoint, the agency hasn’t begun to move these people yet and is asking for two or three weeks in the hottest part of the summer for something that should happen in one or two days,” Edwards said, wiping his salt-and-pepper locks from his forehead.

“At a minimum the state could move the people it considers most at risk first.”

State attorney Craig Warner said that security is the chief concern when moving 1,000 felons. He said forcing the state to prioritize which inmates should be bused first would slow down the transfers.

“We expect the movement to begin at 4 a.m. tomorrow morning. It’s not a process that can be accomplished in a couple days, but it will start immediately,” Warner said.

Ellison leaned to one side in his chair as he weighed the arguments, looking like his lunch did not agree with him, before authorizing the state’s plan.

“I don’t think the state has an incentive to delay this. When they tell me this is the best they can do, I don’t have a reason to doubt them. They’d probably be happy if it was done in 48 hours. … To move this many people in three weeks strikes me as a success, not a failure,” he said.

Twenty-three Texas inmates have died from heat-related illness in the past two decades. But no heat deaths have been reported at the Pack Unit, and the latest year that Texas inmates died of heat was 2012, when two prisoners died.

Texas claims a respite program it started in 2015, in which inmates can ask guards at any time for access to one of their prison’s air-conditioned areas and stay as long as they want, has reduced the number of heat illnesses.

But Texas’ own expert Dr. Dean Rieger testified in other hearings that the vague language in the TDCJ’s poster describing the respite program, and posted on a bulletin board in the Pack Unit, should be rewritten, as it’s generally accepted that the average reading level of inmates is third grade.

Rieger is the former medical director for the Indiana Department of Corrections and Correct Care Solutions, a private company that specializes in prisoner health care. Texas has paid him more than $40,000 for consulting on the Pack Unit class action and other heat-related prisoner cases.

Texas stated in an Aug. 3 brief that it will make four classrooms in the Pack Unit, a hallway outside them and an adjoining prison library a “permanent base for respite” that can accommodate 280 inmates, more than 50 percent of the roughly 400 inmates who will be left after the prisoner transfers.

Addressing the poster language concerns, Texas said it plans to put up new posters about the respite program.

“The poster emphasizes that: (1) respite areas are accessible to anyone who wishes to cool down, at any time, regardless of whether he is currently suffering symptoms of heat related illness or injury; (2) the heat is dangerous and inmates should use respite areas to protect themselves, and seek medical attention if they actually feel ill; and (3) inmates may talk at a reasonable volume, read, or rest in the respite areas,” Texas said in its response to the judge’s order.

But Edwards took issue with the new poster’s wording, seizing on Rieger’s testimony about inmates’ reading level. He questioned how many prisoners know what respite means.

“We are talking about third graders. … Will the state agree to state on the posters, ‘The heat is dangerous, it can kill you and it has killed many others because they lived in these temperatures?” he asked.

Ellison told the parties to work out the poster wording, and said he would not let the conflict stall the inmate transfer. “The TDCJ is authorized to begin transfer of heat-sensitive inmates to be finished in three weeks,” he said.

Ellison is also presiding over lawsuits that eight families of prisoners who died of heat stroke have filed against the TDCJ. The families are represented by Edwards’ Austin firm Edwards Law and attorneys with the Texas Civil Rights Project.

Alex Friedmann is the longtime managing editor of Prison Legal News. He served 10 years in the Tennessee state prison system. He told Courthouse News that Texas inmates’ heat deaths and resultant legal defense costs will not move officials to install air-conditioning in its 109 state prisons.

“It’s a political matter, and the lack of climate-controlled prisons is seen as a tough-on-crime issue,” he said, noting that most states do provide air-conditioning for prisoners.

“Those that don’t tend to be in the South, among the former Confederate states,” Friedmann said.

Ellison stated in his injunction order that it’s possible that more than 23 Texas prisoners have died from heat illness since 1998, citing doctors who testified in the case about the underreporting of heat deaths.

“For those people who think prisoners don’t ‘deserve’ air conditioning, they need to consider the at least 23 Texas prisoners who have died due to extreme heat conditions, none of whom were sentenced to death,” Friedmann said.

“The state has a constitutional responsibility to provide adequate care to prisoners. It doesn’t matter what prisoners ‘deserve,’ it is what the state is required to do when it locks people up. Also consider that prison guards and other staff suffer under the same heat conditions, which they don’t deserve, either,” he said.